Wednesday, August 28, 2024

Hoisting The Supremes On Their Own Petar

 A good analysis (so READ IT!) of part of what Smith did with a superceding indictment.  This, however, is the REALLY interesting part:

Smith will still need to overcome the presumption created out of thin air by John Roberts on all of this. But he may do so from a posture where the utter absurdity of Roberts’ ruling are made obvious.

That’s one reason it’s important that Smith has included the tweet via which Trump almost got Mike Pence assassinated.

Smith rationalized doing so by emphasizing that Trump wrote it neither in the Oval Office nor with anyone’s assistance.

92. Beginning around 1:30 p.m., the Defendant, who had returned to the White

House after concluding his remarks, settled in the dining room off of the Oval Office. He spent much of the afternoon reviewing Twitter on his phone, while the television in the dining room showed live events at Capitol.

[snip]

94. At 2:24 p.m., the Defendant personally, without assistance, issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!” [my emphasis]

This situates this Tweet, which almost got Mike Pence killed, a private act for which Trump has no immunity. It may not work. But that’s the logic.

Trump v. US ruled that what happens in the Oval is presumptively "official" (more of the crap reasoning of that ruling.  The Oval is somehow "magic," while the dining room attached to it is not.)  When I was in seminary, I was a "licensed pastor" for a church.  I was the pastor, for all purposes, but "official" only when I was at that building.  We joked that the Holy Spirit (invoked during ordination, which I hadn't had yet) was yanked out of me when I drove away from the church (I lived at the parsonage on the grounds), and re-entered me when I drove back into the garage.  That's the reasoning here.  The UCC logic (my church) was that I wasn't "fully" a pastor, so I couldn't administer sacraments for other churches.  Okay.  It was really an administrative (literally) question. The legal "logic" of Trump v US is...well, hell if I know. POTUS is official in the Oval, unofficial in the dining room? And "immunity" works on what evidence shows where he was when he crimed?  DOJ is certainly pushing that point here.  And it leads to this:

Here’s where things get interesting. As far as I’m aware, we have yet to see any of the superseding indictments for crime scene defendants against whom DOJ wants to sustain obstruction charges (we have seen superseding indictments against people against whom DOJ has replaced obstruction with something else, like rioting).

DOJ could have used a combined grand jury to do both, Trump and his mob. They’re each going to focus on the same issues: What staffers did to preserve the certificates as mobster came in, and the intent to prevent their counting.

They appear not to have done so; yesterday’s indictment lacks the date the grand jury was seated, which normal DC District grand juries have.

If that’s right, then Jack Smith (appears to have) seated a grand jury that could spend the next several months examining different charges, perhaps boosted by whatever precedents come out of the proceedings before Judge Chutkan and others, rather than simply sharing a grand jury with prosecutors doing much the same thing, addressing Fischer.

If Jack Smith succeeds in preserving this indictment — and that’s still a big *if* — then he will do so by making the argument that Trump, in his role as candidate, had the intention of using a mob to target the guy who played the ceremonial role of counting the vote. It would result in a collection of judicial holdings that presidential candidate Donald Trump had a mob target his Vice President in an attempt to remain President unlawfully.

Sure, John Roberts and his mob might yet try to odverturn that. John Roberts might endorse the idea that presidential candidates, so long as they are the incumbent, can kill members of Congress to stay in power.

But doing so would clarify the absurdity of such a ruling.

Trump v US really doesn't hold up to scrutiny.  And if the Roberts court pushes it to absurdity, they'll almost certainly get a Constitutional Amendment in response.  If they don't, they reveal the opinion as an absurdity.

Damned if they do; damned if they don't.  I wonder if they're regretting it already?  Probably not; but they'll have cause to, soon enough. 

BTW, about that new grand jury:

And if it's still sitting, it can certainly keep working.  One other related issue:
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